Anderson Formrite Pty Ltd v Baulderstone Pty Ltd (No 9)

[2010] FCA 974

FEDERAL COURT OF AUSTRALIA

Anderson Formrite Pty Ltd v Baulderstone Pty Ltd (No 9) [2010] FCA 974 

Citation:		Anderson Formrite Pty Ltd v Baulderstone Pty Ltd (No 9) [2010] FCA 974
Parties:		ANDERSON FORMRITE PTY LTD (ACN 097 507 652) v BAULDERSTONE PTY LTD (ACN 002 625 130)
File number(s):		NSD 1272 of 2007
Judge:		GRAHAM J
Date of judgment:		31 August 2010
Catchwords:		PRACTICE AND PROCEDURE – stay of execution principles
Legislation:		Federal Court Rules O 52 r17
Cases cited:		Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 cited Re Middle Harbour Investments Limited (In Liq) NSW Court of Appeal, 15 December 1976 (unreported) cited
Dates of hearing:	31 August 2010
Date of last submissions:	27 August 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	4
Solicitor for the Applicant:	B J Maher of John de Mestre & Co
Counsel for the Respondent:	B D Hodgkinson SC and A C Harding
Solicitor for the Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1272 of 2007

BETWEEN:	ANDERSON FORMRITE PTY LTD (ACN 097 507 652) Applicant
AND:	BAULDERSTONE PTY LTD (ACN 002 625 130) Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	31 AUGUST 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Execution of the judgment (order 1 as made on 25 August 2010 and orders 1 and 2 as made in respect of costs on 31 August 2010) be stayed up to and including 15 September 2010 or further order.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1272 of 2007

BETWEEN:	ANDERSON FORMRITE PTY LTD (ACN 097 507 652) Applicant
AND:	BAULDERSTONE PTY LTD (ACN 002 625 130) Respondent

JUDGE:	GRAHAM J
DATE:	31 AUGUST 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. An application has been made by the Respondent, ore tenus, for a stay of execution in respect of the orders of order 1 made by the Court on 25 August 2010, and the orders made by the Court earlier today in respect of costs.  The parties are agreed that the relevant principles are to be found in the joint judgment of Kirby P, as his Honour then was, Hope JA and McHugh JA, as his Honour then was, in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685, especially at 694 to 695, which included a reference to the judgment of Mahoney JA in Re Middle Harbour Investments Limited (In Liq) NSW Court of Appeal, 15 December 1976 (unreported). 

2. The power of the Court to order a stay is to be found in Order 52, rule 17 of the Federal Court Rules.  The question of whether or not a stay should be ordered is a matter where the Court has a discretion. 

3. One matter particularly relied upon by the Respondent, who is the Applicant for the stay of execution, is that if the moneys payable under the judgment are paid to the Applicant, they may never be recovered, given the other liabilities of the Applicant, some of which are recognised in a charge, notification of which was given to the Australian Securities and Investments Commission on 30 July 2009, whereby the Applicant in the proceedings, Anderson Formrite Pty Limited, charged all the assets of the company, including intangibles and future book debts, in favour of the chargee, Mortgage Funds Management Pty Limited, ACN 076 477 686.

4. In my opinion, the nature of the issues likely to arise on the hearing of an appeal in this matter, and the possible impecuniosity of the Applicant, Anderson Formrite Pty Limited, to repay moneys that are payable under the judgment, militate in favour of a stay being granted.  The stay that is presently sought is up to and including the last day for the lodgement of an appeal from the orders of the Court.  That date is said to be 15 September 2010. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        3 September 2010